Intellectual Property Law
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From the Boston Bar Journal - Predictive Coding: Process and Protocol

Electronic discovery is a fact of life in most business litigation. As use of email and text messaging increases, so has the burden of reviewing electronically stored information (“ESI”). The tried and true method for reviewing voluminous ESI is for attorneys to examine on a document-by-document basis ESI identified through search terms. However, in large cases a document-by-document manual review – even after search term culling – may be extremely expensive and time consuming. Recently, courts have begun to embrace predictive coding as an acceptable method of technology assisted review (“TAR”), which may alleviate these burdens. See, e.g., Da Silva Moore v. Publicis Groupe & MSL Group, 287 F.R.D. 182, 192 (S.D.N.Y. 2012) (Peck, Mag. J.), aff’d, No. 11 Civ. 1279, 2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012) (Carter, J.). In Cambridge Place Investment Management Inc. v. Morgan Stanley & Co., Inc., SUCV2010-2741-BLS1 and SUCV0211-0555-BLS1 (Billings, J.), a Massachusetts court recently approved the use of predictive coding.

As courts accept predictive coding, most (including the Cambridge Place court) will require parties to negotiate protocols for its use. This article provides an overview of predictive coding and highlights issues likely to arise when negotiating such a protocol.

Process

Predictive coding is a process by which a computer is “trained” through the use of an algorithm to rank documents by the likelihood of their responsiveness to discovery requests. The technology is similar to that used by internet search engines, like Google, to recommend relevant web pages based upon the search terms identified by the user.